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Attorneys

Don’t Make the Grave Mistake of Killing Your Appeal from an Order of the Probate Court

August 2 2013

In most California civil cases, a party generally must wait until a trial court issues a final judgment before he or she can get through the doors of the Court of Appeal. While there are a few exceptions, this rule (sometimes called the one-final-judgment rule) prevents litigants from complaining to the appellate court about every ruling in a given case in piecemeal fashion. Even when they receive an appealable judgment, parties to an appeal often find that getting a decision from the reviewing court takes endurance and patience; e.g., the time from the notice of appeal to the decision frequently takes over a year.

Things work a bit differently in probate court. In that forum, parties can appeal from a multitude of rulings that a trial court may issue well before any final judgment. And litigants who feel like they are growing old dealing with other types of appeals may find less waiting when it comes to probate appeals. That is because probate appeals are subject to statutory preference (i.e., hurry-up-and-get-it-over-with rules) under section 44 of the California Code of Civil Procedure. Still, it is a good idea to file an application for calendar preference (to remind the appellate court that yours is one of those cases) in order to speed things along.

It might be easy to forget one or more of the numerous types of orders that are appealable in probate court – particularly for many litigants or attorneys who may have other important (or at least more interesting) things on their minds. For example, an appeal may be taken from an order that directs, authorizes, approves, or confirms a sale, lease, encumbrance, grant of an option, purchase, conveyance, or exchange of property. An appeal also lies from an order that settles an account of a fiduciary; authorizes, instructs, or directs a fiduciary; approves or confirms the acts of a fiduciary; or directs, authorizes or allows payment of compensation or expenses of a fiduciary or an attorney.

Oh but wait, the list of examples continues. With respect to a decedent’s estate, appeals can be taken from any order granting, refusing to grant, or revoking most types of letters to a personal representative; admitting a will to probate or revoking the probate of a will; or setting aside a small estate or setting apart a probate homestead or property claimed to be exempt from enforcement of a money judgment (just to name a few).

Short of memorizing the types of orders that are appealable, it is crucial to confirm whether a ruling from a probate court is appealable – as the deadline to file a notice of appeal often expires in 60 days under rule 8.104 of the California Rules of Court. Once the applicable deadline passes, the appellate court will lose jurisdiction and the possibility of obtaining appellate review will be dead. Accordingly, it is advisable to review sections 1300-1304 of the California Probate Code whenever the probate court issues an adverse ruling (to see if yours is on those lists of appealable orders). Alternatively, you can call a probate or appellate lawyer who is familiar with such things. Either way, don’t make the grave mistake of killing your appeal from an order of the probate court before it starts (by failing to recognize that it is appealable or otherwise missing the deadline).